Personal musings on Israel, Jewish matters, history and how they all affect each other

Monday, April 12, 2010

On Following Orders

Yom Hashoah seems as as good as any to re-visit the issue of soldiers following orders. The other day a reader posted a comment asking if perhaps Anat Kamm might not be protected under the concept of soldiers who must think of the morality of their actions and may not hide behind the mere fact that they're ordered.

Set aside the matter that stealing cabinets of documents cannot easily be construed as a refusal to be immoral. Set aside also the fact that even with the documents as published by Haaretz, it's hard to see what illegal actions might have happened on which she was allegedly reporting. Set aside the fact that the Attorney General looked into the matter, just in case, and found that the "crimes" Uri Blau was alleging didn't happen, and the army acted according to the law. (Link here, relevant paragraph only in Hebrew: interesting, isn't it).

Setting aside all that, there's still the principle whereby a soldier must obey orders, but sometimes a soldier may not obey orders. Israel worked out this conundrum back in the 1950s. I wrote about this in Right to Exsit, and am reproducing the relevant page or two here (p. 123-124):

Israel’s second war, the Sinai Campaign, began on October 29, 1956.On the first afternoon, fearing that the war might spill over to the Jordanian front, an order was given to harshly enforce a curfew in the Israeli-Arab towns along the Jordanian border.The commander of one of the units of the Border Police, stationed at the town of Kfar Kassem, interpreted this in an extreme manner, and his troops shot 47 villagers in cold blood – workers returning from work without having heard about the curfew. It was a cold-blooded murder of innocent villagers, with no alleviating circumstances.

This time the killers were put on trial; two of the commanding officers were sentenced to many years prison, although they were later pardoned, and this pardon was a blot on Israel’s record. The long-term significance of the case, however, was in its legal and educational import.Henceforth Israeli soldiers were told that it was their legally binding duty to disobey what were called “categorically illegal orders.”

Categorically illegal orders are a modern version of the sixth commandment, “Thou shalt not murder.”Soldiers are expressly forbidden to murder, even if ordered to do so on the field of battle; if they do, they will be court-martialled.The order they were given will not be relevant to their defense, since their moral duty as human beings supercedes their duty as soldiers.Such a ruling can be applied only rarely: a merely “illegal order” must be obeyed; the “categorically illegal orders” must be disobeyed.The definition given by the court was hardly helpful, unless you came from a tradition that had been using the distinction between killing and murder for three thousand years: a categorically illegal act is one above which a black flag flutters.

With such a literary metaphor, 18 and 20-year-old youths are armed and sent to battle.They must obey the orders of their commanders, under threat of court-martial, because otherwise an army cannot function; but they must not obey when they see the black flag, under threat of court-martial, because otherwise the society they defend with their lives may not be worthy of the sacrifice.This is the Israeli definition of Jus in Bello.It is not a philosophical construct for academic seminars but a component of training for battle.Israel’s record prior to the murders at Kfar Kassem hadn’t been bad; it was generally to improve from here on.The cold-blooded lining up of civilians to be shot has never repeated itself.

The principle is a soldier must never harm an innocent person. That is never take anything from him he has no right to take, not throw him out of his home, not to mistreat him and not to kill him. Any order to a soldier to do the above things is illegal and immoral. A commander in the army has a right to give a lawful order and expect his subordinates to faithfully carry it out. He has no right to expect his subordinates to carry out an unlawful order. Such an order is in truth no other at all and it is no defense to say they can be issued or must be followed. Even war has a clear moral limit and this is black and white and there is no confusion about it.

NormanI understand that the military is forced for the good of the country and everybody in it to make it a black and white but I can't help feeling compassion for a soldier having gone wild when his buddy is lying cut in half on the street as seems to have happened in Haditha.

by which I want to say in the heat of the encounter I hesitate to call anything cold-blooded even if they sound callous and distanced as in the recent video I doubt their blood is cold. British WW1 vets have taught me to consider it a terrible job which quite easily lets a man loose his sanity temporarily.

Therefore once they have been court-martialed and the military has had its say I am inclined to say in most cases leave them alone, let them take responsibility, learn to live with it but don't do what we call nachtreten, roughly after-kicking

I personally consider "categorically illegal" to have a fairly obvious interpretation, but one that can't necessarily be generalized. To paraphrase someone's definition of pornography, "I know a categorically illegal act when I see it."

Perhaps I spend a little too much time thinking about such things, but the initial analogy I thought of was in Jewish law regarding mamzer status. A child born out of wedlock is not a mamzer, so long as the parents could legally get married; in contrast, a child born to, say, a kohen and a ger would be a mamzer, because the parents' relationship is, shall we shall, "categorically illegal."